Archive for September, 2014

Many have heard of the unfortunate and the unexpected death of Joan Rivers while having a planned throat surgery. Along with grieving their loved ones, it would not be unusual in such situations for a family to seek counsel to analyze whether to bring a medical malpractice suit. Other celebrity estates have brought successful medical malpractice claims such as Michael Jackson. In such situations, some of the key questions that would need to be answered are as follows. First, did Rivers give the doctors consent to perform, if necessary, a biopsy during a planned endoscopy? In New York, the law provides that “before obtaining a patient’s consent to an operation or invasive diagnostic procedure or the use of medication, a doctor has the duty to provide certain information concerning what the doctor proposes to do, the alternatives to that operation, procedure or medication and the reasonably foreseeable risks of such operation, procedure or medication.” N.Y. Pattern Jury Instr.–Civil 2:150A.

A second question would be whether the doctors failed to exercise reasonable care during the procedure? This question is harder to answer, and in most cases ultimately ends up in a battle of experts. Each side hires their own experts to testify that the doctors did or did not exercise reasonable care based on the circumstances. The experts should consider questions such as whether the surgery should have been performed in a clinic or hospital, whether the proper anesthetic was used, and whether the clinic and its doctors properly responded to signs of medical distress.

As with all potential medical malpractice cases, there are many questions and factors that first need to be considered before bringing a lawsuit. Indeed, the Rivers’ situation, while high profile is simply a common example of many cases involving the death of a patient where a family might explore a medical malpractice case. The reality in today’s litigious world is that any unexpected medical outcome may lead to heightened scrutiny and a legal challenge even if the doctors made no error. Medical professionals should heed the warning to make sure all consent and risk protocols are followed, proper response plans are in place, and that all rules and procedures meet the minimum requirements set forth by the law.

In a recent Georgia Court of Appeals decision, an employer learned the hard way why it is important to always be aware when employees sign multiple employment agreements. In Mapei Corporation v. Prosser, 761 S.E.2d 500 (Ga. App. 2014), an employee initially signed an employment agreement containing a non-competition provision. Just one week later, the employee signed a similar employment agreement, but this agreement omitted the non-competition provision. Both employee agreements contained a “superseding agreement” clause stating that the agreement “totally replaces all prior contractual agreements.” In an interesting twist, however, the employee did not deliver the first-signed agreement to the employer until after he signed the second agreement, and never mentioned that he signed the second agreement. After the employee resigned and went to work for a competitor, the employer wanted to enforce the first-signed agreement.

In finding that the second-signed agreement controlled, the Georgia Court of Appeals noted that, under Georgia law, a contract becomes binding on the date it is signed – not the date it is delivered. When considered in conjunction with the superseding agreement clause, the Georgia Court of Appeals held that the second-signed agreement totally replaced the first-signed agreement. As a result, because the second-signed agreement lacked a non-competition provision, the employer could not enforce any non-competition restraints.

This decision should serve to remind employers that, when an employee signs more than one employment agreement, the employer should take extra precautions to monitor the contents of each employment agreement. If an employer wishes to continue certain obligations existing under a prior employment agreement, an employer should ensure that subsequent employment agreements are carefully drafted to include those obligations. A failure to specifically recognize or restate covenants or obligations agreed to in prior employment agreements may result in the loss of those employer protections, much like the loss of the non-competition protections in Prosser.

On September 4, 2014, the Eleventh Circuit Court of Appeals voted to rehear the case of United States v. Quartavious Davis en banc. In the original opinion, the Court found that all cell-site data is protected by the Fourth Amendment. The vote to rehear the case vacates the panel decision, and the case will be set for a future en banc argument before the full Eleventh Circuit.

The facts of the case show a relatively straightforward prosecution for a string of armed robberies. Quartavious Davis was convicted of robbing a Little Caesar’s Restaurant, a Walgreen’s pharmacy, and several other businesses with a group of accomplices. At trial, the prosecution called two of Davis’s accomplices to testify, called two eyewitnesses, and introduced surveillance video from four of the robberies.

The Fourth Amendment issue arose in the prosecution’s decision to also introduce records from cellular service providers showing that Davis and his accomplices had placed and received phone calls near the robbery locations around the times of the robberies. Davis objected, arguing that this information was protected by the Fourth Amendment and that law enforcement officers should have obtained a warrant before gathering it (they had obtained a court order but no search warrant).

The Eleventh Circuit panel agreed with Davis’s argument, in an opinion that has been criticized by [at least one constitutional scholar] as a “radical… reinterpretation of the Fourth Amendment.” In addressing the question of how a person can have a Fourth Amendment right to privacy in his public movements, the court distinguished a single observation of a person in public from the type of broad information gleaned from cellular data: “the car owner can reasonably expect that although his individual movements may be observed, there will not be a ‘tiny constable’ hiding in his vehicle to maintain a log of his movements.”

As we previously have reported, Major League Baseball is facing substantial potential liability in an alleged conditional class claim brought by minor league baseball players against their respective major league teams for failing to pay minimum wage and overtime.

Last month, the San Francisco Giants were hit with some wage and hour liability separate and apart from the on-going potential class claim. The Giants paid almost $550,000.00 to 74 employees that allegedly did not receive both overtime and minimum wage payments. The Department of Labor’s release indicates that the payments covered both major and minor league employees, including clubhouse managers, clubhouse assistants and video production employees. The DOL found that some employees were misclassified as exempt, and others were paid a flat rate for working 5.5 hours per day, however, they supposedly were working between 12 and 15 hours per day.

This significant penalty is an ominous sign for the pending lawsuit, as it signals a likely finding that time spent at the ballpark is time spent working under the FLSA. It also is a great reminder that, although day rate methods of payment can be beneficial for employers, there is no substitute for accurate and complete time records, and without them, an employer may open themselves up to substantial liability through employee allegations of additional hours worked.

The liability of brand-name and generic drug manufacturers regarding failure to warn claims continues to be a hot button issue in state courts across the country. Just two weeks ago, we wrote about how the Alabama Supreme Court held that a brand-name manufacturer could be liable for injuries caused by ingestion of a generic version of its drug. This week, a Missouri appeals court reached the opposite conclusion with respect to a brand-name drug manufacturer, but recognized an end-around the typical Mensing pre-emption for the generic drug manufacturer. (The cases are Franzman v. Wyeth, Inc., et al., case no. ED100312, and Nicely v. Wyeth, Inc., et al., case no. ED100313, both in the Missouri Court of Appeals, Eastern District).

As stated above, these issues stem from a Supreme Court decision (Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011)) holding that generic drug manufacturers generally can’t be held liable under state law for failure to warn. This is because the generic manufacturers are legally required to use the exact warning labels that the brand-name manufacturer uses.

Circling back to our Missouri cases, the plaintiffs filed suit against both the brand-name and generic manufacturers for failure to warn. The generic manufacturers moved to dismiss the claims against them, arguing that Mensing barred all state law failure to warn claims against a generic manufacturer. The trial court agreed and dismissed these claims. The Missouri court of appeals, however, disagreed. It found that the generic manufacturers had failed to update the warning label on the drug at issue. Mensing is predicated on the duty generic manufacturers have to keep their warnings identical to the brand-name warnings. The appeals court reasoned that if a generic manufacturer fails to do this, it is no longer protected from liability by Mensing.

As to the brand-name manufacturer, the trial court also granted its motion to dismiss the plaintiff’s claims because the plaintiff never ingested its product. Here, the appeals court agreed with this reasoning and affirmed the dismissal of the brand-name manufacturer. Thus, unlike the Alabama Supreme Court, this Missouri court flat out rejected any notion of “innovator liability” on the part of the brand-name manufacturer.

These cases are an example of the constantly shifting landscape at the state level for generic drug and brand-name drug manufacturer liability. In just the past few weeks, we have seen two different approaches by state courts regarding innovator liability. We will be closely monitoring how other state courts address this issue and what consequences these decisions and any reactionary regulation from the FDA and/or Congress will have on both brand-name and generic drug manufacturers involved in this type of litigation.